As I’ve written about before, last year’s Section 1201 triennial rulemaking exposed quite a few flaws in the rulemaking procedure. The process itself left much to be desired, as did the eagerness of the Copyright Office to take it upon itself to get to decide whether and how people can be allowed to explore the computing technology they legitimately possess.

For background, Section 1201 is a provision inserted into the copyright statute that makes it a separate, independent criminal offense to bypass any “technical protective measure” (aka “TPM”) that prevents a technology use, irrespective of whether that use infringes a copyright. Because, however, this prohibition will inevitably interfere with non-infringing uses, neighboring provisions in the statute instruct the Librarian of Congress to issue exemptions to the otherwise blanket prohibition following a rulemaking process held every three years by the Copyright Office.

I got very excited yesterday when I saw a court system alert that there was a new decision out in the appeal of Lenz v. Universal. This was the Dancing Baby case where a toddler rocking out to a Prince song was seen as such an affront to Prince’s exclusive rights in his songs that his agent Universal Music felt it necessary to send a DMCA takedown notice to YouTube to have the video removed. Heaven forbid people share videos of their babies dancing to unlicensed music.

Of course, they shouldn’t need licenses, because videos like this one clearly make fair use of the music at issue. So Stephanie Lenz, whose video this was, through her lawyers at the EFF, sued Universal under Section 512(f) of the DMCA for having wrongfully caused her video to be taken down.

Last year, the Ninth Circuit heard the case on appeal and then in September issued a decision that generally pleased no one. Both Universal and Lenz petitioned for the Ninth Circuit to reconsider the decision en banc. En banc review was particularly important because the decision suggested that the panel felt hamstrung by the Ninth Circuit’s earlier decision in Rossi v. MPAA, a decision which had the effect of making it functionally impossible for people whose content had been wrongfully taken down to ever successfully sue the parties who had caused that to happen.

Although the updated language exorcises some unhelpful, under-litigated ideas that suggested automated takedown systems could be a “valid and good faith” way of processing takedowns while considering fair use, the new, amended decision does little to remediate any of the more serious underlying problems from the last version. The one bright spot from before fortunately remains: the Ninth Circuit has now made clear that fair use is something that takedown notice senders must consider before sending them. But as for what happens when they don’t, or what happens when they get it wrong, that part is still a confusing mess. The reissued decision doubles-down on the contention from Rossi that a takedown notice sender must have just a subjectively reasonable belief – not an objectively reasonable one – that the content in question is infringing. And, according to the majority of the three-judge panel (there was a dissent), it is for a jury to decide whether that belief was reasonable.

The fear from September remains that there is no real deterrent to people sending wrongful takedown notices that cause legitimate, non-infringing speech to be removed from the Internet. It is expensive and impractical to sue to be compensated for the harm this censorship causes, and having to do it before a jury, with an extremely high subjective standard, makes doing so even more unrealistic.Continue reading »